Citation Nr: 1004299
Decision Date: 01/28/10 Archive Date: 02/16/10
DOCKET NO. 07-13 675A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Huntington, West Virginia
THE ISSUES
1. Entitlement to service connection for a skin disorder
due to service in Vietnam (to include exposure to Agent
Orange).
2. Entitlement to an initial rating in excess of 30 percent
disabling for post traumatic stress disorder (PTSD).
3. Entitlement to an initial rating in excess of 40 percent
disabling for bilateral hearing loss.
4. Entitlement to a compensable rating for residuals of
shell fragment wounds of the right middle finger with
scarring.
REPRESENTATION
Veteran represented by: David L. Huffman, Esquire
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
C. Eckart, Counsel
INTRODUCTION
The Veteran served on active duty from December 1968 to
December 1971.
This case comes before the Board of Veterans' Appeals
(Board) from rating decisions from the Huntington, West
Virginia Regional Office (RO) of the Department of Veterans
Affairs (VA), including a May 2006 rating which granted
service connection for PTSD and assigned an initial 30
percent rating, denied an increased rating for residuals of
shell fragment wound to the right middle finger and denied
service connection for a skin disorder. This appeal also
comes from a March 2007 rating decision from the RO which
granted service connection for bilateral hearing loss and
granted an initial 40 percent rating.
The Veteran testified before the undersigned Veterans Law
Judge at a hearing held in October 2009 at the RO. A
transcript of the hearing is associated with the claims
folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Veteran claims entitlement to service connection for a
skin disorder due to his Vietnam service. He also claims
entitlement to increased ratings for his PTSD, hearing loss
and residuals of shell fragment wound of the right middle
finger.
The Board finds that a remand is necessary to adequately
address the claimed issues. The Veteran's attorney has
pointed out in the October 2009 hearing that the Veteran was
recently granted Social Security Disability benefits, and
indicated that this decision was based on evidence that was
pertinent to the PTSD and hearing loss issues, but also
implied that the evidence could be potentially pertinent to
all remaining issues on appeal.
Current VA examinations of the Veteran's hearing loss and
right middle finger are necessary to ascertain the current
level of disability, as the most recent VA examinations
addressing these problems were done in April 2006 for the
finger and March 2007 for the hearing loss. Likewise it is
noted that the most recent VA compensation and pension (C&P)
examination to assess the severity of the Veteran's PTSD was
done in May 2006, although a private independent medical
examination (IME) was done in November 2009, which appears
to show a worsening of symptoms since this last examination.
The testimony obtained from the Veteran and his wife
indicates a worsening of all his symptoms for the hearing
loss, finger and PTSD since the most recent examinations.
Thus new examinations should be conducted to ascertain the
true extent of these claimed disabilities for which
increased ratings are alleged.
Te most recent VA examination of the right middle finger
done in April 2006 did not adequately address the severity
of all his symptoms associated with the shrapnel wound.
This examination only dealt with the scarring and orthopedic
complaints, but failed to address neurological complaints
described in the record as numbness. Thus a new examination
or series of examinations should address his complete
residuals from the shrapnel wound, to include muscle injury,
orthopedic injury, scars and neurological injury.
As to the claim for entitlement to service connection for a
skin disorder, the Board finds additional development of
this matter is also necessary. The Veteran and his wife
both provided lay evidence that suggests he had a skin
condition on his left ankle ever since service, with the
Veteran testifying that he noticed a skin discoloration on
his ankle in 1970, while still on active duty and his wife
testifying that she noticed it when he was on active duty
after he returned from Vietnam. Transcript 12-13. The
Veteran also testified as to having had wet feet during much
of his service in Vietnam, which the Board notes includes
combat. Transcript at 15.
While the service treatment records are silent for any skin
disorder, the Board notes that such lay testimony is
competent for the purpose of describing symptoms of disease,
disability, or injury, but not the determination of an issue
involving a question of medical expertise. 38 C.F.R. §
3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992); but see Jandreau v. Nicholson, 492 F.3d1372, 1377
(Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay
person is competent to identify the medical condition; (2)
lay person is reporting a contemporaneous medical diagnosis;
or (3) lay testimony of symptoms at the time supports a
later diagnosis by a medical professional).
Given this lay evidence of skin symptoms and wet feet in
service, the Board finds that a VA dermatology examination
is necessary to provide an opinion as to the nature and
etiology of his claimed skin condition. Furthermore, this
matter has also been adjudicated to include consideration of
whether this is a presumptive condition due to Agent Orange
exposure. However even if the skin disorder is not a
presumptive condition to Agent Orange exposure, the Veteran
is not precluded from establishing such a claim on a direct
basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994)
(holding that the Veteran was not precluded under the
Veterans' Dioxin and Radiation Exposure Compensation
Standards Act from establishing service connection with
proof of direct actual causation).
VA's duty to assist the Veteran includes obtaining relevant
medical records and a thorough and contemporaneous medical
examination in order to determine the nature and extent of
the Veteran's disability. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159 (2009).
Accordingly, the case is REMANDED for the following action:
1. The RO should obtain from the
Social Security Administration a copy
of any decision that was made on a
claim for Social Security disability
benefits awarded, as well as the
medical records relied upon concerning
any determination rendered. All
efforts to obtain these records should
be fully documented, and the Social
Security Administration should provide
a negative response if records are not
available.
2. The RO should contact the Veteran
and ask that he identify all sources of
treatment for his skin disorder since
service, and for hearing loss, right
middle finger and for PTSD since his
April 2006 VA examinations for PTSD and
the right middle finger and since his
March 2007 VA audiology examination. He
should be asked to furnish signed
authorizations for release to the VA of
private medical records in connection
with each non-VA source identified.
Copies of the medical records from all
sources (not already in the claims
folder) should then be requested. All
records obtained should be added to the
claims folder. If requests for any
private or non-VA government treatment
records are not successful, the AOJ
should inform the Veteran of the non-
response so that he will have an
opportunity to obtain and submit the
records himself, in keeping with his
responsibility to submit evidence in
support of his claims. 38 C.F.R. §
3.159 (2009).
3. After the completion of # 1& 2, the
RO should schedule the Veteran for an
examination to determine the nature and
etiology of the Veteran's claimed skin
disorder. The examiner should determine
whether any claimed skin disorder is due
to or aggravated by service. The claims
file and a separate copy of this remand
must be made available to and reviewed
by the examiner prior and pursuant to
conduction and completion of the
examination, and the examination reports
must be annotated in this regard. The
examiner should perform any tests or
studies deemed necessary for accurate
assessments. The examiner is requested
to review the pertinent medical records,
examine the appellant and provide a
written opinion as to the presence,
etiology and onset of his claimed skin
disorder.
Specifically the examiner is requested
to provide an opinion as to (1) whether
the Veteran has a current disability or
disabilities involving his skin (2)
whether any diagnosed disability of his
skin at least as likely as not (i.e., at
least a 50/50 probability), began in
service, to include being caused by his
Vietnam service. In answering this, the
examiner should discuss whether any
diagnosed skin disorder is a disease
presumptive to Agent Orange exposure
(such as chloracne), and if not, whether
any diagnosed skin disorder is directly
related to Agent Orange exposure, or
else is related to exposure to wet
conditions of his feet while serving in
combat in Vietnam, or if preexisting
service, was aggravated by active
service. The lay history presented by
the Veteran should be addressed in
discussing these matters.
The examiner must provide a
comprehensive report including complete
rationales for all conclusions reached
4. After completion of #1-2, the RO
should schedule the Veteran for a VA
examination(s) to determine the nature
and extent of his service-connected
bilateral hearing loss. The examiner is
to assess the nature and severity of the
Veteran's service- bilateral hearing
loss, in accordance with the latest AMIE
worksheet for rating hearing loss. The
examiner should perform any tests or
studies deemed necessary for accurate
assessments, to include audiology
testing recording speech discrimination
(Maryland CNC) and the puretone
threshold average, from the sum of the
puretone thresholds at 1000, 2000, 3000,
and 4000 Hertz. The results of this
audiology testing must be included in
the examination report. The claims file
must be made available to, and be
reviewed by, the examiner in connection
with the examination, and the report
should so indicate. The examiner should
clearly outline the rationale and
discuss the medical principles involved
for any opinion expressed. If the
requested medical opinion cannot be
given, the examiner should state the
reason why.
5. After completion of #1-2, the RO
should also schedule the Veteran for a
VA examination to address the severity
of the Veteran's service-connected for
residuals of shell fragment wounds to
the right middle finger. The claims
file should be made available to the
examiner for review of the pertinent
evidence in conjunction with the
examination. Any further indicated
special studies including X-rays should
be conducted. In doing so, the examiner
should record pertinent medical
complaints, symptoms, and clinical
findings in accordance with the latest
AMIE worksheet for rating disorders of
the skin, muscle injuries, neurological
disorders and finger disorders. The
examiner should be provided with a copy
of the rating criteria for disorders of
the skin, muscle injuries, neurological
disorders, arthritis and finger
disorders to assist in preparing a
report addressing the nature and extent
of the Veteran's service-connected
residuals of the shell fragment wound to
the right middle finger. The examiner
also should comment on the functional
limitations caused by the Veteran's
service-connected wound disability
affecting the right middle finger. It
is requested that the examiner address
the following questions:
(a) Does the service-connected residuals
of shell fragment wound to the right
middle finger cause weakened movement,
excess fatigability, incoordination,
pain on movement, swelling, deformity,
or atrophy? If the severity of these
manifestations cannot be quantified, the
examiner should so indicate.
Specifically, the examiner must address
the severity of painful motion from
intermediate degrees to severe. The
active and passive range of motion
should be recorded in degrees. The
examiner must note at what degree in the
range of motion that pain is elicited as
well as the severity of such pain. With
respect to subjective complaints of
pain, the examiner should comment on
whether the subjective complaints are
supported by objective findings, whether
any pain is visibly manifested upon
palpation and movement of the right
middle finger, and whether there are any
other objective manifestations that
would demonstrate disuse or functional
impairment of the right middle finger
due to pain attributable to the service-
connected disabilities. This should
include an opinion as to whether the
manifestations noted more closely
resemble either a favorable or
unfavorable ankylosis of the right
middle finger.
(b) Do the residuals of shell fragment
wound more closely resemble a mild,
moderate, moderately severe or severe
injury to the appropriate muscle group
affecting the right middle finger? In
answering this, the examiner should
identify the muscle group or groups
affected by this injury.
(c) The nature and extent of any
retained fragments and any orthopedic
residuals of the injury shown by X-ray
should be reported.
(d) The examiner should comment on the
nature and severity of the residual scar
from this shrapnel wound as per the AMIE
criteria for rating scars other than the
head, face and neck. The examiner
should indicate the nature of the
scarring related to the Veteran's wound
and expressly give the extent of
scarring in square inches or
centimeters, should indicate whether the
Veteran's scarring is unstable (that is,
frequent loss of covering of skin over
the scar), deep, superficial (that is,
not associated with underlying tissue
damage), or tender and/or painful on
objective demonstration, and whether the
scarring results in weakness, limits the
function of, or causes limited motion
of, the affected part, in accordance
with the latest AMIE worksheet for
rating disorders of the skin.
(e) The examiner should comment on the
nature and severity of any neurological
manifestations shown resulting from the
shrapnel wound to the right middle
finger, the location of the nerves
affected and whether the neurological
manifestations more closely resemble a
mild, moderate or moderately severe
paralysis, neuritis or neuralgia in
accordance with the latest AMIE
worksheet for rating neurological
disorders.
The examiner must provide a
comprehensive report including complete
rationales for all conclusions reached.
6. After completion of #1-2, the RO
should schedule the Veteran for a VA
psychiatric examination to determine the
nature and severity of his service-
connected PTSD. The claims folder must
be made available to the examiner for
review before the examination. Detailed
clinical findings should be reported in
connection with the evaluation. The
examiner should report a global
assessment of functioning (GAF) score
consistent with the American Psychiatric
Association's Diagnostic and Statistical
Manual for Mental Disorders (DSM-IV) and
an explanation of what the assigned
score represents. In addition, the
examiner should state an opinion as to
the degree of social and industrial
inadaptability caused by the service-
connected PTSD.
7. Following completion of the above
development, the AOJ should readjudicate
the Veteran's claims. If any benefit
sought on appeal remains denied, the
Veteran should be provided a
supplemental statement of the case
(SSOC), which reflects consideration of
all additional evidence received. It
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
discussion of all pertinent regulations.
An appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence
and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).